Hearings were held before the undersigned on November 10, 1964, December 14-15, 1964, and January 8, 1965. Very helpful and able briefs were filed by counsel in February 1965 (see Documents 15-17).

On March 26, 1957, Jacob Viner was fatally shot in his North Philadelphia pharmacy during the course of a robbery and in the presence of his wife. The following afternoon, the police arrested three persons, Williams, age 20; Cater, age 19; and the relator, Rivers, age 18, who was born on March 9, 1939.

Rivers was arrested about 5 P.M. on March 27, 1957, and taken to Room 117 City Hall, which was then the Homicide Division Headquarters. He was questioned by the police until after midnight, at which time he was taken, without a hearing, to a cell block. During this period, Mr. Rivers signed a written statement (R-7) confessing his part in the crime. The actual dictating of the statement, according to the police, took over three hours and started at 9:30 P.M. When giving this statement and the statement taken the next day, there is no evidence that relator was advised of his constitutional right to remain silent and not to answer any questions.
*fn2"

The following morning, March 28, 1957, the relator was given a preliminary hearing, but instead of being sent to the County Prison, he was returned to the Homicide Headquarters. The preliminary hearing ended with Mr. Rivers being held for a further hearing on April 4, 1957, at the request of the Commonwealth.

During the questioning, which took place on March 28, 1957, the relator signed another written statement (R-8), the dictation of which began at 2:10 P.M. and ended at 4:55 P.M. The reason given by the police for the second statement was that they were not satisfied with the allegations in the first one concerning the division of the money on the street, rather than in a house, which might result in the criminal liability of persons in addition to Williams, Cater and Rivers (p. 88a of R-5 and testimony of Sergeant Mercer in this proceeding).

The testimony of the police indicated that Mr. Rivers was permitted to make a phone call, but chose not to do so. The police did, however, call his mother, who was permitted to see him on March 28, 1957 (p. 80a of R-5).

The court, on June 17, 1957, adjudged the three defendants guilty of first degree murder and imposed the death penalty. The Pennsylvania Supreme Court, however, on reviewing the proceeding, vacated the sentence (of Cater and Rivers) and remanded it back to trial court for re-sentence as certain evidence had been misapplied. See Commonwealth v. Cater, 396 Pa. 172, 152 A.2d 259 (1958).

Another hearing was held on September 18, 1959, after which the finding of first degree murder was affirmed and the death penalty was again imposed.

Based on the above factual situation, paragraph 23 of the Petition reads as follows:

'23. It is further averred that the confessions which were extracted from this uneducated, 18 year old mentally defective and mentally ill boy, were involuntary because:

'a) he was denied counsel to assist him during the stages of the police investigation of the murder for which he was one of the principal suspects;

'b) he was held incommunicado by the police for more than 24 hours during which time two confessions were extracted from him, and

'c) he was not informed of his constitutional right to remain silent during the police interrogations nor advised of his right to contact an attorney.'

'We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S. (335), at 342 (83 S. Ct. 792, at 795, 9 L. Ed. 2d 799) and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.'

Under the reasoning of the Escobedo case, supra, the activities of the police officers had become accusatory
*fn5"
(since they had 'begun to focus on * * * (3) particular suspect(s) * * *,') rather than investigatory, by 9:30 P.M. on March 27, when the first formal statement of relator was taken, in view of these events:

A. In the early afternoon of March 27, Mrs. Ethel Robinson called the police to notify them that one (Cater) of the three boys believed to have participated in the robbery-homicide was in her luncheonette (pp. 11a and 14a of R-5). Cater was arrested by Officer Thomas at about 2 P.M. on that day (p. 39a of R-5).

B. Relator was arrested at between 5:00 and 5:30 P.M. on March 27 at his home (R-12). He arrived at the homicide unit on the first floor of City Hall at 6 P.M. on that date (R-12). From 6:10 P.M. until 9:30 P.M. on March 27, he was interrogated by Sergeant Mercer and Detective Shanahan (R-12). Rivers was the last of the three co-defendants arrested.

C. Cater made a formal statement to representatives of the Philadelphia Police Department on March 27 at 8:50 P.M., describing Williams and relator as the primary instigators in the robbery-homicide in which they had all participated.

It is interesting to note that relator's able counsel, who served him well until April 1963, when he was called to testify, anticipated the holding in the Escobedo case, supra, by arguing in the state courts in June 1957 that relator's second statement had been secured in violation of his constitutional rights (pp. 113a-114a of R-5). Even if the undersigned is incorrect in believing that both statements will be inadmissible in the additional judicial proceeding which will be necessary to determine the degree of murder and the sentence, the second statement may not be so used under the facts of this case as related above.

This additional proceeding is necessary because both statements (or at least the second statement) were the basis of the finding of first degree murder and the sentence of death imposed in June 1957 and again in the fall of 1959.

There was no mention of any previous thoughts of a 'holdup' in the statement given on the night of March 27 (R-7).

The additional information referred to in Appendix C, which was not available in the fall of 1962, makes it quite possible that a sentence of death would not be imposed at this time.

The fact that relator did not request counsel does not make the principle of Escobedo inapplicable, for as the California court said in People v. Dorado, Cal., 40 Cal.Rptr. 264, 394 P.2d 952 (1964), 'The defendant who does not realize his rights under the law and who therefore does not request counsel is the very defendant who most needs counsel.' On the facts in this record, particularly the mental deficiency of relator, a demand for counsel by a defendant of the age and mental capacity of relator is not essential to require the application of the principle of Escobedo v. State of Illinois, supra.

Respondent's contention that the inclusion of an argument based on the Escobedo case, supra, at page 18 of relator's Petition For A Writ of Certiorari and the subsequent denial of that petition by the Supreme Court of the United States precludes the consideration of that argument in this proceeding must be rejected. See Brown v. Allen, 344 U.S. 443, 488-497, 73 S. Ct. 397, 97 L. Ed. 469 (1953); Sunal v. Large, 332 U.S. 174, 67 S. Ct. 1588, 91 L. Ed. 1982 (1947).

Relator also contends that his constitutional rights were denied (a) by entry of his guilty plea at a time when he was incompetent, unable to understand 'the peril of his position' and unable to assist counsel in his defense, and (b) by being subjected to a judicial proceeding to determine the degree of homicide and his sentence at a time when he was unable to communicate effectively with counsel and understand the nature of the proceedings (see par. 22 of the Petition, being Document 1).

1. Competency of relator at the time of entry of his plea and voluntary nature of that plea (II and III on pp. 7-17 of Brief in Support of Petition for Writ of Habeas Corpus, being Document 15).

W. Bradley Ward, Esq.,
*fn8"
who represented Cater, also testified that in their joint meeting (between all defendants and all attorneys) that 'we exhaustively explained to those boys their precise legal position' and that the significance of the plea was 'completely' explained to relator. He could not recall a case where more care was taken in explaining a position to a client (p. 99, Exhibit R-1). At pp. 102 and 103 of R-1, Mr. Ward testified:

'My conclusion is it never crossed my mind there was any misapprehension on the part of any of these three men of the import and the advice and the explanations which we gave them.' (p. 102)

* * * * * *

'* * * he grasped and understood what it was all about.' (p.103).

At the time of arraignment, relator testified that no one
*fn9"
had promised him anything before entering his plea. Also, the transcript contains this question by his able counsel and this answer (pp. 6a-7a of R-5):

'MR. LEVY: You understand that in entering this plea of guilty you could be found guilty of murder in the first degree and sentenced either to life imprisonment or the electric chair? Do you understand that, Mr. Rivers?

'DEFENDANT RIVERS: Yes, I do.'

The three-judge court presiding over the judicial proceeding of June 1957 stated (p. 205a of R-5):

'These defendants are sane and fully understood the nature, significance and consequences of their acts.'

Relator relies principally on the testimony of Dr. Robitscher (N.T. 251ff.) to support his contention that Rivers was on June 17, 1957, incompetent to understand the significance of his plea or the proceedings against him or properly to assist counsel in his defense.
*fn10"
See United States ex rel. Perpiglia v. Rundle, 221 F.Supp. 1003, 1006 (E.D.Pa.1963). Cf. Kercheval v. United States, 274 U.S. 220, 47 S. Ct. 582, 71 L. Ed. 1009 (1927); Powell v. State of Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932).

As stated above at page 41 (footnote 3), Dr. Robitscher treated relator approximately once a month for a period of 18 months in 1961-1963. From what relator said to him, his observation of relator, the doctors' reports that he had read, the time he understood relator's counsel had spent with him prior to arraignment, and the knowledge of relator acquired by such counsel, and other materials referred to in Appendix A, Dr. Robitscher concluded that relator was not able 'to understand the nature of the charges against him, the significance and effect of his guilty plea or properly assist his attorney in preparing the case' (N.T. 253-4,263,269). The undersigned is unable to accept this testimony of Dr. Robitscher, after considering the record as a whole, for these reasons, among others:

Under these circumstances, relator has not sustained his burden of showing that his guilty plea was involuntary or coerced. See Hudgins v. United States, 340 F.2d 391, 395-397 (3rd Cir. 1965); cf. United States ex rel. McCode v. Myers, D.C., 240 F.Supp. 384.

The findings of the undersigned on certain other matters argued by relator are contained in Appendix B.

The Petition, as supplemented, will be granted. If any party files an appeal promptly, an appropriate supersedeas order may be submitted to the undersigned.

APPENDIX A

The School Records of relator included the following (pp. 157b-160b of R-6):

'George Lee Rivers was admitted to the Philadelphia school system September 21, 1944, in kindergarten. He was not mature. He dropped out and was readmitted 6-1-45. He proceeded regularly at the Blaine, the McIntyre, and then was assigned to orthogenic backward on February 2, 1948, at the McIntyre School. He stayed there in O.B. until February, 1952, when he went to the Kane School. He continued in O.B. Then on September 26, 1955, he was assigned to the Boone Disciplinary School. His cooperation began at the outset in 1-A grade as unsatisfactory and continued that way. It was unsatisfactory through '54, '55, '56 through deterioration. He was flagrantly absent from school. The total unexcused absences, 32 days in the first term of June, '54; 23 the first term of '55; 38 and 30 the first term of '56. Perhaps this would be helpful. George scored an I.Q. of 69 on individual psychological examination administered December 16, 1947. He had been a behavior problem through most of the elementary grades. His attendance had been extremely irregular from the outset of George's school career. He repeated the 1-A grade and was placed in the orthogenic backward class on 2-2-48 following assignment to a 2-B grade. He remained in this until he went to Boone.

'Conclusions and Recommendations: This man is psychotic and moderately mentally defective, probably a low-grade moron. He is very suggestible and easily led by others.'

On September 28, 1959, Dr. Torney examined the relator (pp. 147b-157b of R-6) and his report included the following (p. 150b):

'He is presently functioning in the borderline mentally defective range of intelligence having achieved a Wechsler-Bellevue I.Q. of 77, verbal I.Q. 67; performance I.Q. 91. His mental abilities are very unevenly developed. His reflective abilities are at the defective level. This test pattern points up a highly impulsive individual whose behavior is governed chiefly by immediate need and desire to the exclusion of rational consideration.'

Dr. Torney also testified that he was a 'borderline mental defective' and 'a middle grade moron' and that his 'thinking and reasoning' capacities were 'definitely impaired' (p. 153b). Also he testified that relator, being a mental defective, was 'more easily led than a person of normal intelligence' (p. 154b). Relator's I.Q. in 1953 had been 69 and it could have been lower than 77 in 1957 (p. 156b-157b).

In October 1959, Dr. Warner classified relator as a 'border-line mental defective' with a 'passive' rather than 'aggressive' personality, and described his 'thinking' ability as follows (pp. 164b-165b of R-6):

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.